Sitalprasad Kalka Prasad v. Sukya

1. Civil Suit No. 11-A of 1944 was fixed on 11-10-1945 for recording evidence of parties. On that date the plaintiff who had to lead evidence was not present and his pleader applied for an adjournment on the ground that the plaintiff was ill since last three days and that his witnesses were also ill and were consequently absent. The defendants opposed the adjournment and the lower Court refused to adjourn the case. Thereupon the plaintiff's counsel Mr. C.D Gautam said that as the plaintiff could not appear and instruct him for that date he was unable to proceed with the case for want of instructions, and that the plaintiff may be treated as absent. Thereafter the Court recorded the evidence of defendant 1 as a witness and closed the case at 12.35 P.M The learned Judge then immediately proceeded to write a judgment which was delivered the same day, and the decree in accordance with that judgment was actually signed on 12-10-1945.

2. On 8-11-1945 the plaintiff applied for restoration of the suit to file on the ground that it was dismissed in default on 11-10-1945. This was registered as Miscellaneous Judicial Case No. 54 of 1945. This application was dismissed by the Court on 26-2-1946. It held that the dismissal of the suit on 11-10-1945 was on merits under O. 17, R. 3 of the CPC, and the proper remedy of the plaintiff was by way of an appeal and not by way of an application for restoration of the suit to file.

3. The plaintiff has now come up in revision to this Court. He is again met with the objection that his proper remedy against the decree passed by the lower Court was by way of an appeal and that decree cannot be set aside by the same Court in proceedings for restoration of the suit or by this Court in revision against the order refusing to restore the suit to file.

4. There is much substance in the contention of the non-applicant. In a case where the plaintiff at whose instance a suit is adjourned to enable him to perform some act necessary for the further progress of the suit remains absent on the adjourned date of hearing and also fails to perform the act for which the adjournment was granted to him, the Court should dispose of the case under O. 17, R. 2 of the CPC and not under O. 17, R. 3: vide cases collected by Sir D.F Mulla in his Code of Civil Procedure at p. 708.

5. In the present case the counsel for the plaintiff did appear on the adjourned date of hearing and applied for an adjournment. It was when his request for adjournment was refused that he retired from the case on the ground that no instructions were given to him by the plaintiff for that particular date. This is not therefore a case where a party has failed to appear on the date to which the suit is adjourned. In these circumstances it cannot be said that the Court was positively wrong in proceeding under O. 17, R. 3 of the CPC, or that it had no jurisdiction to decide the suit forthwith on merits as it did.

6. It cannot be denied in this case that the lower Court did proceed under O. 17, R. 3 and decide the case on merits. It has also passed a decree dismissing the plaintiff's suit. It is immaterial whether this decree is right or wrong because if it was wrong it could be set aside in appeal preferred therefrom and not in any other way. At any event the Court passing such a decree has no jurisdiction to set aside the decree passed by it in a proceeding started on an application for restoration of a suit to file and this Court cannot also do it in revision against an order refusing to restore the suit to file. The decree passed by the lower Court would therefore stand apart from the fact whether it was right or wrong because the proper remedy for having it set aside was not followed by the plaintiff.

7. In A.I.R 1935 ALL. 3981 a Division Bench of that Court held that where the lower Court holding that there was no ground for allowing an adjournment dismissed the suit the case was covered by O. 17, R. 3 and if it subsequently restored the same it acted without jurisdiction as it had no jurisdiction to restore the suit to file and the order for restoration was set aside by the High Court in revision. It was further observed in that case that where the plaintiff does appear either through himself or through his counsel the provisions of O. 17, R. 2 are not attracted and the case can only be disposed of under O. 17, R. 3 of the CPC.

8. I am aware of the fact that the Allahabad High Court has added by way of amendment a clause and an explanation to O. 17, R. 2 and it has also amended O. 17, R. 3 of the CPC. But that does not affect the view that I am taking in this revision.

9. This revision is dismissed mainly on the ground that when once the lower Court has proceeded under O. 17, R. 3 of the CPC, and passed, rightly or wrongly, a decree the only remedy of the party is to appeal against that decree. This was not done in the present case and a wrong remedy in the shape of an application for restoration of the suit to file was adopted. In my view that application was rightly dismissed by the lower Court and consequently this revision is also dismissed with costs. Counsel's fee Rs. 20.

10. Revision dismissed.